Tuesday, 29 April 2014

When a parking company is taking you to court, usually the most cost efficient way to settle the dispute is to use the independent appeals service, POPLA. This is free to the motorist and costs the parking company £27. In addition, the process is evidence based - both parties write in with their case, which is then heard by an assessor.

This therefore saves time and money for both parties, and also saves the courts a lot of time.

However, trying to get a parking company to use POPLA once a case has been filed can be like getting blood out of a stone. Why is this? The simple fact is that parking cases have only recently been hitting the courts in numbers and as a result few judges have experience of parking cases. Parking cases typically explore complex areas of law, resulting in 500 or more pages of documentation on both sides and hearings of between 3 hours and a day, all for a £100 parking charge. Many judges do not have the time to research all the issues and as a result decisions vary wildly from court to court and day to day.

Contrast this with POPLA, where the assessors only deal with parking cases and therefore have detailed knowledge of the law surrounding these areas.

The parking companies know that they will lose at POPLA, because it is impossible to run a business for substantial profit from charges levied to make good a loss. They therefore prefer to chance their arm at court.

Some judges have realised it would be far better for everyone concerned to refer the case back to POPLA. There have been no known cases where this happened where the issue had to go back to the courts for resolution, and this can therefore be seen as a success for all parties (as costs are kept down) and also for the court, whose precious time is not wasted in a hearing.

The Parking Prankster has therefore added a page to the website documenting cases which have been referred to POPLA. This can be used as reference material for anybody writing to the court to ask that their case be referred to POPLA.

Sunday, 27 April 2014

ParkingEye apparently decided not to risk losing a third case at Bristol Retail Park due to irregularities in their signage, and finally dropped their claim.

This was an unusual case because a relative of the motorist appealed to POPLA without her knowledge or consent - the motorist was abroad at the time. The appeal was based on mitigating circumstances and was therefore refused. When the motorist found out, she tried to appeal herself using tried and trusted appeal reasons which had always won. Both POPLA and ParkingEye refused to accept the appeal.

ParkingEye also refused to cancel the charge, despite the motorist (aided by another relative) writing to ParkingEye on many occasions, pointing out the many cases they lost, and especially the cases they lost on the same car park due to the deficient signage.

Finally ParkingEye cancelled the claim, perhaps fearing a second dose of Melville-Shreeve-ism, or perhaps because they could not find any LPC Law associate willing to accept a hospital pass in the way that 'That Mr Gopal' did.For more information, see this link at pepipoo.

The parking company the hospital use, APCOA filed a claim for over £700 for 4 parking incidents.

After a lot of time, effort and research, the motorist found that APCOA did not have standing to take her to court; only the hospital could. In addition, the parking company could not show any loss for the alleged breach of contract.

The motorist therefore applied to strike out the claim, paying £45.

The strike out hearing was set for 24th April.

The parking company solicitors (Gladstones) offered the motorist £80 if she would let them drop the claim so they do not have to go to the strike out hearing.

The motorist decided to let them stew for a while.

After some more correspondence between both sides she decided to accept an offer for £200 and signed a consent order to drop the case.

Gladstones forgot to send the £45 fee in to the court along with the consent order, so the strike-out hearing went ahead anyway.

Apcoa and Gladstones declined to turn up. District Judge John Smart presiding invited the motorist and her McKenzie friend in. He explained there had been a lot of toing and froing with the consent order which required a fee, which had not been paid. He stated simply that he was going to have to make some alterations to the consent order as now we were at hearing, some of the wording was no longer relevant.

The Prankster thinks this next piece is the most interesting part of the motorist's report:

"But to be frank he wasn't all that interested in me, the costs or the consent order. It was clear this was all a done deal before I had even walked in the room. He said that he was very interested in the content of my strike out application. Specifically the cases I had referred to and attached the transcripts for (Parking Eye v Sharma October 2013 and Parking Eye v Clarke January 2014). He told me that he and his fellow judges often discuss these parking company court cases they are being asked to rule on, over lunch. He said at some point one of these cases is going to go to appeal, in his view. He told me that he was going to "photocopy this material" from my strike out application.....and he thanked me."

The courts are now seeing significant numbers of parking cases, and the judges are starting to talk together. Perhaps some of them even read this blog. Interesting times lie ahead.

A new phenomenon has been hitting the small claim track recently - guerrilla lay representatives.

ParkingEye have been stacking the deck against motorists by sending in expensive lawyers to small claims hearings. Even faced with an excellent defence these people are experts at diverting the judge into looking at the wrong aspects of the case, using legal jargon and their knowledge of court procedure against unrepresented motorists.

Any victory using these methods is a Pyrrhic victory. ParkingEye fork out £200-£300 for these lawyers which is not reclaimable in the small claims court. Thus, ParkingEye will make at least a £100 loss on the day. They further compound this by ordering transcripts of the case for £200-£300. This is obviously not about the money; it is cleverly designed and orchestrated campaign to create a climate of intimidation. Using their transcripts and mentioning only the wins and never the losses they present a one-sided view of the true situation on their web site, in their POPLA appeals, and in the documents used in other court cases. Judge Melville-Shreeve summed this up nicely in ParkingEye v Collins-Daniel.

Now however a network of lay representatives has sprung up - people who know the ins and outs of parking cases and can help out on the day. ParkingEye never know where these people will pop up next. Sometimes the appearance is pre-arranged; sometimes they just mosey along on the day and see who needs help. Anyone can be a lay representative, and ParkingEye cannot object to their use in the small claims court.

Where they cannot turn up, an Amicus Curiae pack is faxed into the court and asked to be put in front of the judge. An Amicus Curiae is a friend of the court, with no relationship to either party. The AC packs are designed to put the true state of affairs before the judge and inform the judge on what has happened in similar cases in other courts.

Reports are coming in that these AC packs are helping out even in cases where motorists have put in hopeless defenses.

Nothing quite like this has ever been seen before. These people are making legal history.

The Prankster has not seen ParkingEye's contract with the landowner, but it may be similar to the contract with Riverside Retail Park, Chelmsford, where ParkingEye pay £1,000 a week for the right to issue parking tickets. It may be that the residents of Borehamwood are too well behaved, causing ParkingEye to make a loss because they cannot issue enough charges.

ParkingEye often have a clause in their contract which allows them to decrease the time limit if they are not issuing enough charges for the site to be economically viable. Here is an example from the Corporation Street Preston Site.

ParkingEye may amend the time limit or tariff with the consent of the customer (not to be unreasonably withheld or delayed). In circumstances where consent is refused in accordance with this clause [...] ParkingEye shall have the right to terminate the services at the site without liability to the customer giving 30 days written notice.

It is clear this change is not in the best interests of the retailers or motorists as it has been apparently introduced without consultation with these parties (although the Prankster notes that there is contention on this issue and that some comments imply that Debenhams asked for the change). If it was true that the retailers were not informed, this leaves the most likely reason the times were reduced was to increase revenue for ParkingEye. In some cases ParkingEye have a revenue share deal with the landowner, so it may also have been introduced to increase revenue for the landowner.

Where parking conditions change at a site, the parking company should, according to the British Parking Association Ltd code of practice, provide extra signs warning of the change and a grace period.

Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.

It is not clear whether ParkingEye provided signage to indicate that terms had changed, or whether they allowed a grace period for adjustment. The Prankster welcomes any information Borehamwood residents can provide. Not obeying the BPA Ltd code of practice recommendations would make it clear that the changes were for monetary gain and not for the benefit of shoppers and shopkeepers.

ParkingEye's profits dipped from 30% of turnover in 2012 to 7% in 2013. They need to increase profits back to 31% in 2014 to meet the levels predicted by Capita when they purchased ParkingEye in 2013. The most obvious way they can do this is to issue more parking charges per site.

ParkingEye have previously had trouble at this site, and have often issued charges for overstays where motorists have actually visited the site twice. The Borehamwood times have reported on this several times:

ParkingEye's ANPR system is obviously fatally flawed. The most likely reason is that their cameras are either sited too low, or too far away from the capture point. This means that vehicles can be obscured by other vehicles or pedestrians when entering or leaving the site. If the passage of the vehicle is hidden like this it will not be recorded on the system and ParkingEye will believe the motorist has had one long stay.

The picture below shows an actual capture from ParkingEye's system. It is clear that if either car were slightly to one side, or if the car in front was higher (or a van), then the numberplate would be obscured. In that case, the passage of the car would not be recorded and ParkingEye could be fooled into thinking a double visit was one long stay.

We would advise all motorists who break the terms and conditions to make use of our audited appeals process and then, if needed, POPLA, so that they do not end up needing to pay these additional costs. ParkingEye, despite its current success in county courts, does not wish to resolve outstanding parking charges in this manner.

Since then ParkingEye have changed their tune somewhat, having lost at POPLA in every single known case where their charges were claimed not to be a genuine pre-estimate of loss, and having had the lead adjudicator of POPLA write a special 17 page report explaining why their charges are not valid. ParkingEye have even stopped defending POPLA cases bought on these grounds.

Nowadays ParkingEye absolutely refuse to give out a POPLA code once court proceedings have started unless ordered to by the court.

Thursday, 24 April 2014

Legal Arguments (continue)

After lunch Mr Kirk asked to continue so he could address the problem that ParkingEye had so far not introduced any evidence regarding their costs. Feverish activity had obviously gone on with regard to this during the break, and ParkingEye had come up with a copy of their 2012/13 accounts.

Mr Cooke was recalled to the witness box and asked to explain the accounts.

The turnover for the period was £14.3 million, and the net profit 1.0 million, giving a percentage profit of 7.1%. Mr Cooke stated that all costs were incurred in relation to parking enforcement. There was only one copy of the accounts so HHJ Moloney took a look and then passed it back to Mr Cooke. HHJ Moloney asked whether Mr Cooke would like to take another look and perhaps change his statement. Mr Cooke repeated his assertion that all costs were incurred in relation to parking enforcement.

Mr Cooke stated that the bulk of the income was from parking charges.

Mr Kirk argued that the fees were roughly equivalent to council penalty fees and that other car parks charged the same. He also stated that the body that regulates ParkingEye, the British Parking Association, set a £100 limit on parking charges in their code of practice and that amounts above this limit had to be justified.

Mr Foster asked if HHJ Moloney could read that part of the code of practice out. HHJ did so; the paragraph stated that if a charge was for breach of contract, then it must be a genuine pre-estimate of loss. HHJ Moloney commented that he could see why Mr Foster asked him to read the full clause.

HHJ Moloney commented that this business was run in a different way to ordinary commercial transactions.

Defence Legal Arguments

At 2.30 Mr Foster took the floor. HHJ Moloney warned the defendants that just because he had been tough on the claimants nothing should be read into this. He would be tough on them too.

Mr Foster pointed out there was no contract for parking. It could only be a licence, if anything, and no a contract. He pointed out the contract with the landowner gave no right to grant parking, and that it explicitly stated there was no Landlord and Tenant relationship.

He pointed out that VCS v HMRC was a troubled judgment, that Bruton v London and Quadrant Housing Trust referred to in paragraph 22 was a narrow authority and that issues on trespass were obiter.

HHJ Moloney wondered if car parks would clog up if enforcement was not possible.

Mr Foster pointed out that the pre-estimate of loss calculations were a circular argument.

He pointed out that the case law introduced by Mr Kirk were cases between large corporations, with teams of expensive lawyers in which all the contractual terms had been individually negotiated. They were, therefore, parties of equal standing, and completely different from a 'take it or leave it' contract communicated by signage to a consumer.

He further argued that Consumer Law was moving in the opposite direction to commercial law, with the introduction of statutes such as the UTCCR 1999 to afford greater protection for consumers against rapacious corporations.

Mr Foster conceded that one defendant was not covered by the Equality Act 2010, but did not concede that he should not have been given more time and asked HHJ Moloney to still consider this.

Mr Foster asked HHJ Moloney to refer to the 2008 contract between ParkingEye and GVA Grimly for Corporation Street Preston. He pointed out several clauses, including the statement in page 5 of the user manual that the purpose of the system is to deter motorists from using the GVA Grimly car park for anything other than shopping within the stores. He also referred to page 3 of the contract where ParkingEye defined parking charges as 'the monetary penalty fee'. He pointed out that just because a contract stated a fee was a penalty did not mean it was a penalty. It was, however, instructive.

HHJ Moloney replied that the understood why Mr foster wished to point that out even if the contrat was no longer current.

HHJ Moloney pointed out that he would be reviewing both parties skeleton arguments in depth and that it was not necessary to mention everything. Therefore, a substantial part of both parties cases may not have been mentioned in open court.

There were also periods of Mr Fosters defence where The Prankster failed to record everything, and so this account may not include all arguments.

Wrapping Up

HHJ Moloney stated that if a charge looked like a penalty, quacked like a penalty and swam like a penalty, then it was probably a penalty. He wondered whether it would be necessary to create a class of good penalty and bad penalty to deal with the situation.

He repeated that judgment would be reserved and that he was busy for a week, so it would probably take between 2 and 4 weeks. He would email a copy of the judgement to the claimants who should then forward it immediately to the defendants.

There was then some discussion on appeals and HHJ Moloney stated that as he was the most senior judge on the circuit he would attempt to leapfrog any appeal straight to the Court of Appeal.

Phone hacking

Neither side mentioned the events of the first hearing. Although it has been reported arrests have been made, nothing has been officially stated so far. it is clear though, that whatever the circumstances behind the prank phone call, the end result was that ParkingEye were able to call on their preferred barrister, Mr Kirk, to orchestrate the case for them.

Prankster Analysis

There were a few unsatisfactory elements if this is going to be a test case. It may well be that ParkingEye will later argue this site is not typical and that any judgment will therefore apply only to this site and not to any other.

For instance, ParkingEye argued they were the principal in this case. However, in several other cases The Prankster is helping with, including ones where ParkingEye's Reply to Defence was filed this very week, ParkingEye claim they are agents, not principals, and include a document based on advice from Jonathan Kirk himself to attest to this.

In these cases ParkingEye have a clause in their contract with the landowner (usually 3.11) which confirms they collect charges for breach of contract as agents on behalf of the landowner. They then retain these as payment for their service, generating a VAT only invoice to the landowner as the actual amount has been 'paid'. This clause was either not present in the contract shown to the judge, or if it was, was incorrectly redacted as it would certainly have been relevant.

The Prankster also tips his hat to Mr Kirk's deft insertion of the 2012/13 accounts (year end, August) into the proceedings. As the parking events occurred many months before the accounts were published (April 2014), they could had nothing to do with the setting of the charges. Jonathan Langham's witness statement of 4 December 2013 states the costings are taken from ParkingEye's company accounts. This would have been the 2011/12 accounts which were the only ones available at that time; to further demonstrate this, these were the same figures ParkingEye have been using for cases in November 2012.

The 2011/12 accounts paint a different picture. There the profit was 30%, not 7%. Capita acquired ParkingEye in October 2013. They would have presumably been aware of the likely figures in the 2012/13 accounts, and were happy to forecast a profit for 2013/14 back up to 30%. We can therefore assume the 2012/13 accounts are a blip. When companies are purchased the year of purchase often requires an amount of extra costs and restructuring.

The unconditional acceptance of the 2012/13 year's accounts by the court was therefore a masterstroke by Mr Kirk.

The Prankster also disagrees with Mr Cooke's statement that all the costs in the accounts relate to enforcement charges. ParkingEye also operate pay and display car parks as well as free car parks, and they provide and service the machines. This is revenue generation related, not enforcement charges. Thus a significant percentage of infrastructure and personnel will be involved in the revenue generation side of the business, and these costs cannot be allocated against enforcement. Additionally, ParkingEye state they allocate around 55% of their tickets incorrectly and have to cancel them on appeal. These are costs related to dealing with 'good' motorists, and again cannot be apportioned to motorists who stay to long. Charges for breach of contract can only put you back in the position if no breach had occurred. You cannot therefore be asked to pay extra because parking eye made mistakes and incurred costs in other unrelated cases. Additionally, ParkingEye have a large number of charges where they do not enforce costs for various reasons. Again, charges for breach of contract can only put you back in the position if no breach had occurred. You cannot therefore be asked to pay extra for somebody else's breach of contract where they did not pay. Additional, ParkingEye use their system to provide management information to the landowner. This is advertised on their web site.

Live feeds on customer usage, average length of stay, drop-offs, turnover, parking revenue and more gives you the information to help you plan more effectively

This is therefore nothing to do with enforcement and means that a proportion of the ANPR infrastructure, including servers, communications and back office functions must all be costed against management services to clients and not against enforcement.

Essentially this management information is used to 'portion control' shoppers and force them to speed through the shop as fast as possible for fear of overstaying. ParkingEye can of course also use this information, and some of their contracts allow them to decrease the time allowed so that they can increase the number of overstays if they are not making enough money from a site.

It has been reported that the time allowed at the site in question was reduced from 3 hours at some point to 2 hours. The retailers on site have been reported as not being happy with this. However, as the time is negotiated between the landowner and ParkingEye they are powerless to affect this.

The Prankster also worries that HHJ Moloney was only provided information regarding charges at nearby parking sites. One of his questions was whether a £10 charge would be enough to deter motorists, and if so, then £85 would seem to be unconscionably large. The Prankster is aware of sites which charge £20 (discounted to £10 if paid within 14 days). As these sites do not seem to have a parking problem, it appears that £10 is enough of a deterrent.

The Prankster also worries that the ParkingEye business model was presented as the only possible model, and that parking chaos would ensue if ParkingEye were not allowed to operate. This is not the case and other models also work. For instance, with the £10 charge model, the landowner pays the parking company a monthly fee and makes no profit on parking charge revenue. The parking company does not then rely on penalty charges to make a profit. It therefore has no incentive to issue excessive charges.

Lastly, The Prankster worries that the court did not explore ParkingEye's cost per ticket issued. This has been established at £17 from their 2011/12 accounts and in fact the 2012/13 accounts come out with a similar figure. This establishes the charge of £85 is far too much.

The Prankster also notes that this is the third completely different explanation of pre-estimate of loss ParkingEye have come out with since October 2012. Originally they stated this was the landowners loss due to fewer people being able to shop. Then they changed it to the entire cost of running their business. Now they are saying it is the lost business if the landowner cancels the contract.

We will have to wait for a few weeks to see what HHJ Moloney decides about all this.

Background

This blog post details the second attempt to hear a test case by HHJ Moloney. The claim concerns two defendants who were genuine shoppers and simply overstayed at Riverside Retail Park, Chelmsford.

This case is significant because large numbers of cases around the country are stayed to await the result. It is no secret that the industry would have to have a big rethink on their business practices and charge levels if the claim was dismissed. On the other side of the coin, defendants in similar cases would have to rethink their defences if the claim was upheld.

Jonathan Kirk QC and Mr Altaras were acting for the claimant, ParkingEye. Mr Foster was acting as lay representative for the two defendants, assisted by Bargepole.

HHJ Moloney opened up by stating that he would be reserving judgment today and that he hoped his ruling would be useful in resolving further disputes in that part of the country. He laid out a schedule of 1 hour to question the claimant witness, Mr Alex Cooke, chief enforcer, and 1/2 hour to question each of the defendants. There would then be the afternoon for the claimant to lay out their case, the defendants to respond, and a final right of reply to ParkingEye.

Opening Statement

Mr Kirk asked to able to open with a short statement which the judge allowed and at 10:40 Mr Kirk began, explaining that the £85 charge was for overstays at the car park, that the charges were not penalties because they were reasonable and a genuine pre-estimate of loss. The purpose of the contract is so that parking is not abused and this was a value to the landowner. The claimant's business would be damaged if they could not enforce £85 charges, which could lead to the landowner cancelling their contract. This would lead to ParkingEye losing the revenue of £85 from the parking charges. Therefore the charge was a genuine pre-estimate of loss.

HHJ Moloney asked if the claimant's sole source of income was fines, which was confirmed. He commented that it was an unusual feature of this case that the claimant's business model hinged on overstaying and issuing of charges.

He further stated that one question to be decided was whether the consumer was required to pay a disproportionate sum looking at the contract as a whole, and whether this caused imbalance between the parties.

Witness - Mr Cooke

At 11:00 Mr Altaras called Mr Cooke as a witness. He asked if Mr Cooke had ever visited the site, which he had the day before the last hearing. Mr Cooke stated signs were ample and visible, and that there were around 7 retailers on the site, which was a 10 minute walk from the city centre and 15 minutes from the station. He confirmed there were 2 other sites nearby, not managed by ParkingEye, which charged £70 and £85 for overstays. He stated that Savilles manage the site on behalf of British Airways Pension Fund, but that in his opinion they do not have the authority to cancel parking charges.

HHJ Moloney wondered that just because one set of pirates established a charge without basis, it did not mean that other pirates were justified in also setting the same charge.

He stated that a sample contract, dated 12-September-2008 and submitted by the defendants was no longer in use and that newer contracts used different wordings. However, there were many contracts, all in different stages of changeover so there was no standard wording.

Mr Foster took over questioning. He accepted the signs were there to be seen, but not that they were there as described. He pointed out that the signage stated ParkingEye were 'solely engaged to provide a traffic maximisation scheme' and asked what that was. Mr Cooke stated this was to achieve the best turnover of shoppers for the client. This was done by setting a maximum stay. Mr Cooke stated that the £85 charge was there to provide a deterrent to overstaying.

When asked what ParkingEye's direct loss from an overstay was, he confirmed there was none. If there was no breach of contract, then no payment would arise.

He was invited to explain the part of his witness statement where he said that 3 letters were sent to each defendant, each inviting them to appeal. He confirmed that appeals could only be accepted for the first 28 days, and that the third letter was sent after the 28th day.

Mr Foster asked why the witness statement said defendants were invited to appeal, if in fact they could not appeal.

Mr Cooke explained that although the defendants technically could not appeal on receiving the third letter, ParkingEye do sometimes accept appeals after this date.

He was asked to explain what the words 'Parking is at the sole discretion of the site' meant, but could offer no explanation.

HHJ Moloney asked what would happen if a burger van turned up and 'the site' wanted them kicked off. Mr Cooke stated in that case the site could phone up ParkingEye who would send out a mobile enforcer to move the van.

Witness - first defendant

At 11:20 the first defendant was called. He confirmed he had used the site around 12 times previously, but never since the incident. He had a football injury at the time, which lasted several months, but less than a year which meant he needed longer to shop.

He was asked if no charge should be applied for overstays or if so, what level of charge would be too much. He replied he was not qualified to answer that question.

HHJ Moloney asked if blue badge holders were also limited to 2 hours stay. ParkingEye confirmed this was the case. Blue badge owners did not have more time; they just had a better chance of parking due to the provision of blue badge spaces.

The other defendant was not called as a witness.

Legal Arguments - ParkingEye

At 11:30 Mr Kirk began his legal arguments

He confirmed ParkingEye pay £1,000 a week to the landowner and in return get to keep all parking charge revenue.

He ran through several clauses in the landowner contract, some of which he admitted were confusing, and stated these showed ParkingEye were enforcing parking charges as the principal.

HHJ Moloney queried whether in fact they enforcing as an agent.

Mr Kirk stated there was a contract between ParkingEye and motorist and that the consideration from the motorist was that they would pay £85 for breach of contract if they stayed more than 2 hours.

HHJ Moloney asked whether as ParkingEye were paying British Airways, was this like a rent so that BA have given up their parking rights to ParkingEye?

Mr Altaras pointed out that the definition of long-term disability was more than 1 year and therefore the Equality Act 2010 did not apply to the first defendant.

Mr Kirk stated that the test for a penalty is if the sum demanded is extravagant or unconscionably greater the than the costs.

HHJ Moloney pointed out that 'terrorising' parkers is the whole point of the contract. It is intended to coerce the motorist into staying within the limits.

Mr Kirk disagreed, stating that although it is a deterrent, this is always the case with breach of contract amounts, so this was not the test.

HHJ Moloney replied this seems like a paradox. 'I have to consider the commercial justification. The bigger the fine, the better the deterrent and the better the commercial justification'.

Mr Kirk explained that with consumer law (UTTC 1999) this focused on proportionality.

Mr Kirk drew attention to Robophone v Blank, which although before consumer law, showed that a penalty clause should not be decried.

HHJ Moloney wondered that we would not all be here if the charge was £5 for the third hour.

Mr Kirk drew attention to Murray v Leisureplay which showed the modern test for a penalty was whether it was extravagant compared to actual costs.

He also drew attention to the Cavendish case.

Mr Kirk explained that the UTTC 1999 rules show contracts are unfair if they put the burden of proof on the consumer. Thus the burden of proving a charge was a genuine pre-estimate of loss could not fall on the consumer, but would be the responsibility of the claimant.

HHJ Moloney explained that he would be considering the following in his judgment. Was the charge a penalty? Was the charge enforceable under UTTC 1999?

Mr Kirk asked whether it could be the case that common law provides greater protection than the regulations.

HHJ Moloney stated this was false logic.

HHJ Moloney pointed out that the cases relied on so far regarding commercial justification were all between massive companies where the contract had been individually negotiated with full legal advice for both sides. This would therefore be something of a test case as there were no consumer contract cases on file.

He explained he would consider whether the charge so large compared to normal costs then it would be a penalty. If so, the claim would be struck out.

Mr Kirk drew attention to the First National Bank case, which was the leading case on unfair terms to consumers. There, the terms were unfavorable if there was an imbalance to consumers. Proportionality is the key, along with good standards of commercial morality and sound practices. He pointed out the charges were similar to other car park operators.

HHJ Moloney pointed out that in fairness to the industry they might all agree on the same prices, which did not make them correct. He asked whether £85 was far too much.

Mr Kirk referred to Arthur v Anker, a clamping case. This was in 1992 and the charge in that case of £45 would be £74.60 with inflation in today's prices.

HHJ Moloney pointed out that ANPR has different economics to wheelclamping and does not have men on the ground. He pointed out he had not seen any costings for this 'virtual' enforcement, or their profit model, and that if all car parks charged the same they could all be disproportionate. Also in Arthur v Anker the landowner employed the clamper, whereas in this case ParkingEye were arguing they were the principal.

HHJ Moloney then stated again that no costs had been shown by ParkingEye and the burden of proof was on them. He asked whether he should not strike the case out. He asked whether the sum was high in relation to the costs. He also asked whether the sum was high in relation to the penalty needed. If a penalty of £50 or even £10 would be enough to discourage overstays, then £85 would clearly be too high.

Wednesday, 23 April 2014

One of the more interesting facts to emerge from the ParkingEye case in Cambridge on 22/04/2014 was that ParkingEye pay £1,000 a week to British Airways Pension Fund to be allowed to issue charges at Riverside Retail Park, Chelmsford.

This works out as £52,000 a year, which if replicated over ParkingEye's 750+ car parks, would cost them £39,000,000 a year. It is known that ParkingEye do not pay to play at all of their car parks so the true figure is likely to be somewhat less; especially as the 2012/13 accounts show cost of sales to be £2.3 million. That would limit the number of pay-to-play car parks to 43 (all paid at the same rate).

To cover this, ParkingEye would need to issue and get paid for 20 tickets a week at the discounted rate of £50, or 12 at the full rate of £85.

This gives an interesting insight into the economic of the parking business. ParkingEye presumably have set their figures so they do not operate at a loss, and the number of tickets issued is therefore substantially larger than this [*1].

ParkingEye's figures in ParkingEye v Somerfield show they average 0.4 tickets per parking space per week on similar sites. The Prankster made an ad-hoc attempt at counting the number of parking spaces from Google maps, which came to around 580. The Snail did some better research and found the actual number of spaces was 510. This would put ParkingEye's take at somewhere between £10,000 to £17,000 week from this car park if it achieved similar ticket issuing rates to the Somerfield car parks.

Happy Parking

The Parking Prankster

[*1] Another poster pointed out that ParkingEye could afford to run several sites at a loss in order to increase market share and drive out smaller competitors.

Monday, 21 April 2014

In a recent BBC article, Patrick Troy, the head of the British Parking Association Limited was reported as saying that the appeals service POPLA is free. However The Parking Prankster can reveal that parking companies have started passing the £27 POPLA fee to motorists. The BPA Ltd are well aware of this practice, but have decided not to stop the operators charging and are not intending on taking any action against operators who charge.

ParkingEye have already enforced the £27 charge against several motorists and are taking court action to reclaim the £27 in other cases.

In one incident, the refused to cancel a charge against a motorist who fell on Snowdon and injured himself unless he paid the £27 POPLA fee to them.

This casts grave doubts on other statements given by Patrick Troy to the BBC.

Charging an injured motorist is hardly considerate. The Prankster has a whole catalogue of similar incidents he has helped with including other medical emergencies, pensioners, disabled motorists, motorists pursued even though letters never arrived and companies using extremely bulling and aggressive practices.

The British Parking Association Ltd has been informed of deliberate misinformation sent out by parking companies, but has decided not to take action as lying to the public is not a breach of the code of practice. ParkingEye regularly inform motorists they have never lost a court case on the issue that their charge is not a genuine pre-estimate of loss, even though they know this is false and that many such cases have been lost. The BPA Ltd are happy for ParkingEye, one of their biggest operators, to continue telling these untruths and have stated they will not be taking action.

The BPA Ltd obviously has a relaxed attitude to telling the truth; it seems as though this is a problem from the top down. The BPA Ltd are equal opportunity liars, happy to feed misinformation to the public, the BBC and also the government without discrimination. When lobbing the government to introduce the Protection of Freedoms Act Schedule 4, the BPA Ltd fed the government a whole stream of misinformation regarding the burden on the courts. Ironically since the introduction of PoFA 2012 the amount of court action has increased to around the value the BPA Ltd pretended it was before the act.

Tuesday, 15 April 2014

Visitors contemplating a visit to the famous Snowdon Mountain in Wales should make sure they don't have any accidents while hiking around the mountain.

One unlucky motorist did, and is now paying the price. He suffered a serious fall while on the mountain, with his left ankle popping out and cutting his right knee. He had to limp back to his car having to cope with the injuries and had to contemplate whether to go to hospital or not. This delay in leaving the Snowdon Mountain railway (SMR) car park resulted in a one hour 23 minute overstay.

The vultures at ParkingEye, sensing some easy money, fired in a parking charge for £100. Even though they were fully informed of the incident they denied the motorist's appeal. The motorist then appealed to POPLA, but only on the circumstances and unfortunately not the usual winning points, and the appeal was turned down. Sadly the motorist was unaware that appealing on the ground that the charge is not a genuine pre-estimate of loss guarantees a win. The lead assessor of POPLA has written a special 17 page report detailing why ParkingEye's charges are not valid. POPLA continue to refuse to put this reason for appealing on their web site.

ParkingEye started court action, but no doubt due to their chaotic internal systems forgot to get the notice to proceed filed in time and the case was stayed. Incredibly they then applied to continue the case. Continuing a stayed case costs £40 in legal fees. This establishes that ParkingEye are not interested in the £100 parking charge; they are purely doing this to be vindictive to the motorist. There is absolutely no hope of them making any money even if they win the case. Their estimated costs of £240-£340 will far outweigh the £100 parking charge so there was zero business sense in pursuing this case.

The motorist has also asked the landowner, Snowdon Mountain Railway, to intervene, but they refused. They referred the motorist to back to ParkingEye. Snowdon Mountain Railway have abandoned their social and ethical responsibilities, selling out to ParkingEye

The moral of this story is that if you are planning a trip to Snowdon in the near future, you might be well advised to re-think and change your destination to a more tourist-friendly site, one which will not penalise you if you have a genuine serious incident that may delay your return.

It would of course be possible to run the car park as a pay on exit car park, with the motorist being informed of the amount to pay on exit. However, this would not allow ParkingEye to rake in money from parking charges.

Most private parking tickets are not issued correctly and can therefore be cancelled on appeal. However, the process can be daunting and requires some reading up and research. While this is all quite possible, not everybody will want to do this and so a new company has been formed to take care of this all for you .

For £16 they will take care of all the appeals process for you, and guarantee your ticket will be cancelled. if not, they will pay the parking charge!

The service has been operating in a limited trial form for a while and so far has had a 100% success rate, with some appeals cancelled by the operator without the need to go to POPLA.

This will of course save the operator the £27 POPLA fee, but it is ironic that the operators realise the futility of carrying on when faced with the Appeals Service, while still forcing ordinary motorists to jump through hoops. The operators know full well that the people behind the appeals service have had a long history of helping people win appeals in the past and The Prankster can reveal that they still provide free help to motorists on the forums, while also running the appeals service

3JD09864 ParkingEye v Greenhall (04/04/2014 Dudley) DJ Loyns dismissed the claim in 5 minutes (following the earlier case) as the claimant had no standing to bring the case.Following on from the earlier report where ParkingEye lost to a fax machine, there were apparently two ParkingEye cases held in that court on that day.

The second case lasted all of 5 minutes. The judge immediately requested a copy of the contract between landowner and ParkingEye. After careful scrutiny he stated that he did not believe ParkingEye had authority to bring the case as there is nothing in the contract which says they had permission to bring legal action for their own loss, and the claim was for the landowner's loss, not ParkingEye's.

After a few minutes of the ParkingEye representative trying to convince the judge they had permission, the judge had enough and dismissed the claim.

3JD10556 ParkingEye v Pointer (10/04/2014 Coventry). DDJ Salmon ruled that the motorist had purchased a ticket, that his evidence was more believable than ParkingEye's and that there was therefore no case to answer. ParkingEye were also reprimanded for trying to ambush the hearing with new evidence.

Mr Pointer, represented by his son, met the ParkingEye representative before the hearing. She was very friendly and explained how events were likely to proceed.

DDJ Salmon came across as very thorough. He acknowledged he had received a formidable bundle of information and proposed to tackle the main issue first (the ticket) and then other points later (no loss suffered; lack of standing for claimant; no genuine pre-estimate of loss). This was a little nerve-racking for Mr Pointer who hoped the ticket issue was enough to decide the case, and therefore avoid any sparring with ParkingEye regarding the finer (or blunter) points of contract law.

ParkingEye's main argument was that Mr Pointer had not entered the full registration into the machine. She ambushed the hearing with a new 'Reply To Witness Statement' with additional information about the terms and conditions of parking which stated that the full registration should be entered. This document had not been received by either the defendant or the court and had no signature or date; this resulted in a stern and protracted telling of from the DDJ who finished up saying he would not attach much weight to the document as it was not served properly.

Ambushing defendants in court is a common tactic by ParkingEye and should be sternly resisted. Defendants should point out to the judge that the Claimant is a huge company with a legal department who are fully aware of the court procedures and that and documents served after the filing date should be ignored.

By contrast, ParkingEye do their best to scare defendants from updating their own documents.

It seems ParkingEye like to have it all their own way, and think they can ignore court procedures at will, while attempting to rigorously enforce them on unrepresented defendants. Luckily DDJ Salmon gave them short shrift this time.

There then followed much debate about parking machines and signage. Mr Pointer argued that when he parked there it was only possible to put digits into the machine and not letters. Thus it was not possible to enter a full registration. The machines were changed at some point and the whole car park was refurbished. ParkingEye contended that the machines were the new type at the time of parking and referred to evidence from the landowner (Ironically some of it through the defendant's own Freedom of information request.) Mr Pointer stuck to his guns and did and excellent job of persuading the judge that the landowner and ParkingEye were wrong.

Mr Pointer had saved his ticket from the day and also had samples of newer tickets. He went into lots of detail into the differences between old and new tickets and also that he distinctly remembered the old machine.

ParkingEye tried to infer that Mr Pointer was in a rush and did not read the instructions correctly, but Mr Pointer robustly denied that and the judge quashed further argument by pointing out there was 5 minutes between the time ParkingEye's photo showed the car entered the car park and the ticket was purchased.

After some more cross-examination the DDJ said he would ask ParkingEye to sum up, then give Mr Pointer the opportunity to say anything further before moving on to the next points.

However after ParkingEye summed up, he then launched into a summing up of his own; it soon became apparent this was the final judgment.

DDJ Salmon stated Mr Pointer has presented his evidence succinctly, passionately and clearly honestly and that on the balance of probabilities he found his evidence to be the most persuasive, despite the 'evidence' to the contrary from ParkingEye.

There were smiles all round when Mr Pointer asked for parking to be covered in his costs.

Outside, ParkingEye had a quick chat and asked why they had let things get this far. Perhaps the question should really have been asked the other way round. ParkingEye will have spent an estimated £400-£500 chasing up a £1 parking fee which was in any case fully paid.

Perhaps Coventry Health Centre should take a leaf out of Northumbria NHS's books and replace ParkingEye with a solution which is more appropriate.

Monday, 14 April 2014

An interested party sent The Parking Prankster a copy of ParkingEye's credit rating according to Duedil.

This shows ParkingEye's credit rating has been in free-fall since the beginning of this year. An unconfirmed report from another credit rating agency has rated ParkingEye as low as 25/100.

Duedil recommends a credit limit of £32,000.

It is not known why ParkingEye's credit has dropped so spectacularly. It may be that the agencies have realised that the company has essentially zero value. If every single motorist was to appeal their charge to POPLA on the grounds that the charge is not a genuine pre-estimate of loss then based on previous results POPLA would cancel every charge, leaving ParkingEye with zero income and POPLA costs of nearly £19 million.

In May 2013 Norman Baker, the then Parliamentary Under Secretary of State for the Department of Transport promised a review of POPLA after the first year of operation.

Stephen Hammond is now the current incumbent. The review of POPLA is now six months behind schedule. It is clear that the 'further safeguards' the government believe to be in place are being bypassed at will. For instance, Proserve are not a member of the BPA Ltd's AOS (or their rivals, the IPC) and yet regularly extract keeper data from the DVLA and are currently involved in a large number of county court claims against motorists.

The trust to oversee POPLA is now in place, only four months behind schedule. However, The Prankster is worried that it does not have enough funds to operate properly and that the members of the trust do not have enough time allocated to them to be able to function at the necessary level. A large number of problems have built up with POPLA since its inception, and the trust may not have enough resource to deal with these in a timely manner.

Reports of operators in the BPA Ltd AOS flouting the code of practice are legion, yet enforcement action from the BPA Ltd is not forthcoming. The DVLA stick their head in the sand and massage the figures to pretend the number of complaints is minimal.

Perhaps it is time for Stephen Hammond to start the long overdue review of POPLA.

Saturday, 12 April 2014

Bailiffs visit Parking Eye. No April Fool.The bailiffs from Preston Court popped into Chorley Towers on April 1st.

There was no fooling around by Mr Sljivic who was awarded costs against PE on 10th March in Warrington County Court after the sage Judge ruled that ParkingEye’s case had zero merit. The Judge ordered ParkingEye to pay Mr Sljivic his £108 in costs within 14 days. However it seems that the education system is somewhat lacking in Chorley as clearly their employees’ arithmetic does not extend as far as the number 14. Note is clearly required for Mr Gove to look into the teaching of the 3Rs in Lancashire.

As no cheque had arrived after 14 days, Mr Sljivic popped back to Warrington Court to get an enforcement order for these costs to be paid. Mr Sljivic happily wielded his piece of plastic for the £100 court fee required for enforcement. Thereby another 100 quid was added to the bill due for payment by the arithmetically challenged ParkingEye .

ParkingEye’s cheque for £108 did arrive several days later, together with a compliments slip dated 24th March. However ParkingEye left sending this cheque until the very last minute and took a gamble on Postman’s Pat’s finest being able to deliver this on time. Their luck was out and the payment arrived after the required 14 days ordered by the court. Therefore the enforcement order stood and ParkingEye now needed to pay £208.

On April 1st, the bailiffs (as we all know so often threatened by PE against motorists) from Preston Court wandered up to Chorley Towers to do the necessary and duly undertook the enforcement to recover these costs.And therefore in unison we all cry Schadenfreude from the hills and steeples

So, time now to do some maths.

If ParkingEye’s pet lawyers from LPC charge £300 for their sterling day’s service in court on behalf of ParkingEye, plus this £208 that is now payable (for costs and enforcement), the fee for ParkingEye for all their futile efforts for their rapacious illegitimate claim has resulted in Mr Sljivic now being up £108 and ParkingEye being down £508. ParkingEye also had to spend £2.50 to the DVLA, £15 court filing fee and £25 hearing fee, taking them past £550.

If everyone went to court and did the same as Mr Sljivic, with ParkingEye pursuing circa 12,000 court actions a year and if every time they lost in court and it were to cost ParkingEye 550 quid +, this means Chorley Towers would be shelling out over £6 million a year on failed litigation.

Now if every one of the 700,000 DVLA enquiries (that presumably ParkingEye then goes on to send their illegitimate claims onto unsuspecting motorists), were subsequently challenged and referred to POPLA, this would mean 700,000 referred to POPLA costing £30 a pop would mean £21 million exiting Capita’s finest Lancashire acquisition.

ParkingEye would be down £27 million per annum.

Methinks, Capita would be somewhat concerned with their Lancashire investment if everyone getting pursued by ParkingEye went to court or appealed to POPLA.

The transcript of the approved judgment from ParkingEye v Mrs X 3JD08399 has been kindly donated and is available on the website. The Prankster wishes to thank Mr and Mrs X for their kind donation, which may have been partially funded by ParkingEye.

In this particular case the motorist did not park in ParkingEye's car park, but in adjoining property. ParkingEye's ANPR system took pictures of the vehicle entering and leaving their car park, but the system was fatally flawed because there were no cameras monitoring the huge intersection between the two properties.

This is a common occurrence in ParkingEye car parks and the Prankster has reported on several such cases in the part.

It appears the the installation and monitoring teams ParkingEye use, lack the competence to install systems only in car parks where it is appropriate, and to make sure the integrity of the car park boundaries is maintained.

A large number of ParkingEye victims are elderly, disabled or vulnerable and The Prankster has helped with many such cases. ParkingEye presumably view vulnerable people as a pushover. Here is an extract from one case ParkingEye won in 2013.

Mr X has written to the court fairly recently. He says that he will be unable toattend today as he has just returned from hospital and is using oxygen at home andhe is not able to travel.

ParkingEye sent a lawyer in to court against Mr X. It is clear the sole reason this was done is not to recover the parking charge but to use this transcript to intimidate and bully other vulnerable people. Even though ParkingEye won the case they will be around £400-£500 out of pocket after paying for the lawyer and the transcript.

However, in today's case it looks like ParkingEye have bitten off more than they can chew with a formidable opponent in the shape of Mrs Rodgers.

The Prankster wishes her the best of luck and suggests that she gets in touch with the landowners of the car park, who will no doubt be appalled by ParkingEye's behaviour.

In the Guardian article ParkingEye are quoted as saying 'ParkingEye wins the majority of legal actions it brings against motorists who breach the terms and conditions of a car park.' Back in September 2013 ParkingEye were fond of saying 'ParkingEye win over 90% of court case's. By January 2014 this had changed to 'ParkingEye win over 85% of court cases.' No doubt soon they will be reduced to bragging 'ParkingEye win quite a lot of court cases.'
Happy Parking

Wednesday, 9 April 2014

The Parking Prankster has received the following email, which needs no further comment.

VICTORY!!!!ParkingEye finally saw sense and made me the offer I wanted and am happy with; a more reasonable £20, which is a considerable reduction from the £160 they were demanding.I have settled this because quite frankly I want to concentrate on more important matters, like job hunting and more personal issues. These things hanging over one are emotionally very draining!! Yes I might have won in court, but I have persevered and followed the advice given, so I can look forward to being relieved of the stress and time consuming litigation from bullies like this.I see this as a Victory for the Parking Prankster, MoneySavingExpert and Pepipoo forums and would like to thank you SO much for all your help and guidance. I have a special thanks for Parking Prankster; I have no doubts at all that without his help, I would have been tied up in knots!!.

UKPC hide behind a series of PO boxes, making it difficult to know where they are actually based.

A determined motorist has now tracked them down, and The Parking Prankster can reveal that their offices are based in Beaconsfield, and their full address is:

3 Gregories Court
Gregories Road
Beaconsfield
Buckinghamshire
HP9 1HQ

Even with the address the building is difficult to find.

The Prankster has therefore published an aerial photograph showing their office buildings ringed in red.

The Aston Martin of owner Rupert Williams, with personalised number plate ending RW, is often parked outside, showing that car park management is a lucrative business. Mr Williams conveniently lives about a mile away from the offices, making it easy to get to and from work.

The motorist found the offices through a combination of local knowledge and luck. The PO Box was traced to a nearby Mace Confectionery Store. From there the trail ran cold but he was lucky enough to overhear a conversation in a cafe mentioning UKPC. This led him to the offices.

The offices are staffed by 20 or so employees, mostly sat around computer screens.

Saturday, 5 April 2014

It is a little known procedure in law that anyone not associated with a case can assist the court by bringing matters to their attention which are relevant to the case in hand. Typically these would be matters which are either not known by the parties, or which one party has decided to deliberately suppress to the detriment of the other party.

A person who does this is known as a friend of the court, or Amicus curiae.

An Amicus Curiae document was faxed into court for ParkingEye v Sheppard. The 'friend' had no knowledge of either parties, but later the the defendant contacted the fax sender as follows.

"I would like to take this opportunity to thank you for the fax you sent to the courts in Dudley on the 4th of April of which they gave me a copy. I think the Judge found them very useful, as he brought them to the attention of their solicitor, the outcome being their claim was dismissed. Thank you for your interest. Regards Freddie Sheppard"

ParkingEye 0 Fax machine 1

That makes 3 of the 4 known ParkingEye cases known losses for ParkingEye yesterday. If you were the fourth, please contact The Prankster.

ParkingEye v Griffiths 3JD10885 (04/04/2014, Edmonton County Court). The judge dismissed the claim because the defendant visited twice and ParkingEye's ANPR system failed to pick that up. Ms Griffiths, if you read this, please contact The Prankster who would like to fund the purchase of the transcript. This is an important judgement which will help many other cases The Prankster is currently helping with.

This case was reported by an observer. All we have to go on was that this person was bald, and his mere presence and eagle-eye caused the ParkingEye lawyer, Ms Prentiss to run away into a conference room for several minutes with her phone. Presumably she was phoning Nick Lester to warn him to keep well away. For the sake of argument, we will call this mysterious person, 'Bald Eagle'.

Bald Eagle was available to give help if necessary, but Ms Griffiths seemed extremely well prepared, quite at ease in the court environment and perfectly able to handle the case herself.

The judge listed the points of the case he wanted to discuss, which were:

1. ParkingEye's rights to charge, i.e did they have the conferred rights of the land owner to recover parking charges

2. Signage, on the basis that it was mounted too high and the small print on it was too small

3. Whether there was a Genuine Pre-estimate of Loss

4. ParkingEye to prove that this was a single event whereby she had overstayed by 14 minutes when she had in fact visited the same car park on two separate occasions that day

5. ParkingEye had given no indication that they would issue proceedings. (Prankster Note. This probably meant that this was one of the large number of their 'Letters Before Action' which seem to go astray)

6. ParkingEye's violations under the Equalities Act.

Ms Prentiss replied along these lines:

1. The agent had signed a witness statement that proved ParkingEye's right to take court proceedings on behalf of the landowner.

2. Photos submitted in evidence by ParkingEye together with a map of positions of signs were sufficient to prove that the Defendant had every opportunity to refuse to enter the contract but failed to do so. Ms Prentiss argued that it is for the driver to study the small print once parked

3. It is not a penalty and ParkingEye are not profiteering. No siree, profiteering is not the thing ParkingEye are doing. Even though they operate at a substantial profit. To conclude, ParkingEye are not profiteering. The DJ indicated that ParkingEye had supplied some figures in its evidence pack and that he would consider them at the appropriate time. (Prankster's note. ParkingEye's accounts show they made 30% profit in 2011/12, although profits for 12/13 are down)

4. Ms Prentiss maintained that the photos proved that this was one parking event. The Defendant had said in her defence that she had made two visits to the same car park that day (Brent Cross South) and that in between visits she and her passenger had gone across the North Circular to another car park.

The DJ immediately seized on this and said that he wanted to hear evidence on it before considering any other points raised in the defence. He quite correctly pointed out that if ParkingEye could not satisfy him that this was one parking event and not two, he would be satisfied that the claim was not proven and would dismiss the claim.

The Defendant, with the help of the DJ, established a credible time line of events that on the balance of probabilities (those who know the law will know this is the test applied in civil proceedings) the Defendant had not parked for one single period of 3 hours 14 minutes, but had received two photographs from ParkingEye, the first of which was taken on entering the car park on the first visit and the second of which was taken on her departure on the second visit.

Game over. Claim dismissed.

The DJ did make a comment along the lines "I have dismissed the claim on these grounds and therefore have no need to consider any of the further grounds put forward by Ms Griffiths, although I do consider them most interesting.

Bald Eagle then wandered back to his vehicle to find a parking charge of his own on the windscreen, so may find himself back in the same court in a year or so's time.

Prankster Note

ParkingEye's ANPR systems are fatally flawed because they do not record every entrance and exit. They do not have x-ray capabilities so if a numberplate is obscured by a pedestrian or other vehicle, then errors occur. The fact that ParkingEye are prepared to go all the way to court when they are perfectly aware of their system's shortcomings is a damning indictment of their attitude towards parking management.

A parking operator has announced a fixed fee service to cancel parking charges from other operators.

The website, www.petas.co.uk is still under development, although the service was scheduled for launch this weekend.

Recognising that most parking charges are invalid the operator has broken ranks and decided to cash in.

The Parking Prankster saw a short-lived thread on MoneySavingExpert advertising this new service, with some posters for and some against. The Prankster will throw his hat into the ring and side with the parking operator. He hopes many more operators will join in and offer similar services.

This will have the effect of driving down parking charges until they are valid, at which point the operators will cotton on to the fact they cannot run a business on monies from pre-estimate of loss and will have to charge a management fee to the landowner. This will then remove the incentive to issue absurd tickets and everyone will be happy.

The Prankster hopes that the British Parking Association Ltd will align themselves fully behind this enterprising new scheme which will help drive up standards in the parking industry and will provide a cheap service for those people too busy to appeal themselves.

The Prankster already thinks he knows the winner of the British Parking Association Ltd 2015 Innovation in Parking Award.

Except Capita who forked out £57.5 million without doing their homework.

This morning I was in court, we barely had time to sit down when the Judge requested a copy of the contract between the landowner and Parking Eye. After reading through it he said I do not believe you have authority to bring this case to court as there is nothing in the contract which clearly says you have permission to bring legal action for their loss; and this is their loss not yours.

After a few minutes of their representative trying to convince the Judge they had permission, he said the case was to be dismissed.

I was quite shocked it was over so soon!

The Judge has the identified the situation perfectly. This is exactly why ParkingEye go to such great lengths to try and stop Judges seeing the actual unredacted contract. This is also why ParkingEye try and get away with landowner witness statements instead of a contract.

ParkingEye's landowner witness statements have been completely discredited following a freedom of information request releasing emails which appear to show that ParkingEye provide witness statements which are knowingly untrue and which contain statements not in the witness knowledge. They also show that ParkingEye also use pre-signed witness statements which they copy and date themselves and which contain statements not in the witness knowledge.

ANPR Ltd first filed a template court claim in August 2013 which is against court protocol and the motorist reported them to the court.

Later on they filed real court papers in October 2013, causing much interest amongst pepipoo regulars.

Although ANPR Ltd then continued to move the court process along, when it came to the final step, actually appearing in court, they were found wanting.

It is not known why they failed to appear. They may have just forgotten, or they may have taken advice from Excel Parking on court procedures, sorted their spreadsheets incorrectly, and turned up on the wrong day.

More likely though is that their recent split from H&S Litigation caused the no-show. H&S Litigation have posted a message on their web site saying they no longer act for ANPR Ltd. It may be then, that no one was available for the court appearance, that H&S Litigation had not communicated the dates to ANPR Ltd or some other confusion had occurred in the hand-back of cases.

Please note that we no longer represent ANPR Ltd of Preston as of 16th March 2014. Any issues regarding tickets should be directed to ANPR Ltd., Box one, Preston PR2 0NF or 01772 882 999.

The Prankster speculates that H&S Litigation have been so successful, despite their innovative approach to grammar and spelling on their web site, that another parking company has made them an offer they cannot refuse.

The legal qualifications H&S Litigation boast of are quite impressive, comprising 150 years of car park management, and full knowledge of the Protection of Freedoms Act 2012, Schedule 4. Motorists were no doubt quaking in their shoes all around the country at the prospect of having to face such experience.

The Prankster will keep any eye on the situation to see who has acquired their services.

Thursday, 3 April 2014

VCS were facing an impressive line-up for this case. Bargepole prepared the defence packs, Kirkbyinfurnesslad was the lay defendant and Professor Rachael Finn was the defendant.

The Judge decided there were three areas to investigate; standing, signage and the level of the charges.

VCS had not submitted a contract and tried to produce on one the day. Kirkbyinfurnesslad objected to this because it should have been filed 14 days before the hearing. If VCS wanted to use it, then he wanted an adjournment so that he could have time to study it. The Judge said he wanted it done and dusted on the day, so VCS withdrew the contract.

Bizarrely the Judge then ruled that as VCS had a landowner witness statement saying they had to pursue claims in accordance with the British Parking Association code of practice then the claimant had standing.

Signage was also quickly dealt with, the Judge again ruling in favour of VCS.

This left a long time to deal with the knotty subject of costs. Obviously the brains behind the operation were not in on the day VCS prepared their costs document, because they tried to argue that the cost of enforcing each £100 ticket was £160. The judge quite correctly ruled they must be lying and the document was unsatisfactory. If they really operated like this they would be haemorrhaging money faster than Nick Lester trying to avoid the NoToMob.

It seems like word of parking companies relaxed attitude to the truth is spreading from Judge to Judge. After the case the Judge remarked that there was going to be a hearing in Cambridge soon regarding ParkingEye. The VCS representative also mentioned that all the parking companies were waiting on the result of this hearing.

Prankster Analysis

There were some obvious falsehoods in the VCS document. They were trying to pretend that the average cost per ticket of preparing for a POPLA case was more than £60. However, as only 1% of cases go to POPLA, this would mean that each actual POPLA case cost £6000 to prepare for. This is absurd.

There were similar nonsensical sums given for debt collection and various other categories.

However, perhaps we should not be too surprised that VCS are not too hot with spreadsheets. Excel Parking, the owners of VCS, failed to turn up to court recently when their legal expert failed to sort his spreadsheet correctly.

Kirkbyinfurnesslad succeeded in tripping up VCS multiple times. You can too if VCS take you to court.

This was the third different explanation for charges from VCS the Prankster has seen. It is absurd that the British Parking Association Ltd let them get away with this. The correct way to do a charges calculation is to estimate your average costs in processing and enforcing a ticket, and then set your parking charge to that amount. The way not to do it is to keep inventing different categories and values which come to the same total as your parking charge and hope that one day you hit on an acceptable combination where the particular items you choose are acceptable to the courts or POPLA.

Wednesday, 2 April 2014

The moneygrabbers at ParkingEye were rubbing their hands gleefully during the recent spate of bad weather. Cancellations and delays meant more money in their pockets, as this example from the Blackpool Gazette shows.

I parked my car on the Church Street/Caunce Street car park on the morning of February 12 to go from Blackpool North for a day return to Manchester.

On that day the whole country suffered the worst storm for many years, the BBC describing it as of ‘unprecedented wind force’.

The storm caused my train to be stopped at Preston and I had to find my own way home to Blackpool resulting in me being 24 minutes over the 12 hours I’d paid for.

The motorist appealed to ParkingEye but they dismissed his claim and warned him they would get a court judgment to seize any goods he owned.

Cleverly, ParkingEye managed to give the impression in their rejection letter that appeals to POPLA were rarely successful and only added to the costs and stress. Those in the know, of course, recognise this as bluff and bluster. ParkingEye lose all correctly worded appeals, and have even given up submitting evidence packs to POPLA.

Sadly the motorist seems to have been suckered by ParkingEye's blizzard of words. What a pity he did not do a bit of Google research and save himself a lot of money.

The flint-hearts at ParkingEye will be chuckling over their cauldrons at the extra revenue rolling in due to the poor weather recently.

Leaving aside the thorny question of whether hospitals should charge for parking, The Prankster would instead like to concentrate on the issue of the actual car park management, and whether it is run in a way that is fair to landowner, car park operator and motorist.

At hospitals it is a general point that most visitors do not really know how long they will be there for - appointments overrun, other more needy cases may suddenly take priority, and so on.

This car park is therefore a pay on exit car park. The entrance and exit are monitored by ANPR cameras connected to the payment machines. On exit, the motorist types in their registration, the system knows how long they have been there, and informs them how much they need to pay. The motorist cannot type an incorrect registration by mistake, and does not need to know how long they stayed.

Regarding the Marlborough Hill ANPR pay & display car park.I understand that there have been no tickets issued for overstaying in this car park for the last 3 months. Please can you confirm this.

We can confirm that there have been no Parking Charge Notices issued for overstaying in the car park for the last three months

This sounds like the system is working as intended. The motorist is paying the correct amount, and the hospital is getting the cash. What about the poor operator? They have no parking charge revenue at all?

The simple answer is that the operator has a contract with the hospital which ensures they get paid for their services. This means they have no incentive to maximise parking charges by using dodgy practices and making the system difficult to use.

The Prankster also had an extensive chat with the hospital facilities about this car park and spoke to very helpful chap who stated they were very happy with this car park, and that they try and run it in as fair a way as possible. For instance, if there is a hint that the machines break down, no charges will be issued. He gave an example that if the broadband link was down, then because some images may be missing they would automatically void any charges for the day.

HOW NOT TO DO IT

Let us contrast this with a similar hospital setup, also using ANPR. Northumbria NHS uses ParkingEye at several hospitals under their control. Unfortunately, ParkingEye have designed the system to set the motorist up to fail. The motorist must guess the time they stayed, even though ParkingEye know this, and they must get their registration correct, even though ParkingEye know when an incorrect registration is entered. ParkingEye do not charge the hospital for their services at all, and make their money through aggressive enforcement policies. Figures released under the freedom of information act show that ParkingEye are raking in money from charges at the rate of around £1 million a year. Let us not forget that as this is a hospital there will be a large number of vulnerable people ParkingEye are bullying for this money.

The result in this situation is that the hospital are deluged with complaints and that motorists are very unhappy. Many motorists pay extra in case they get charged.

The only happy bunnies are ParkingEye, who are laughing all the way to the bank at having conned the hospital into introducing this wholly inappropriate system.

The Parking Prankster suggests that any motorists unhappy with the situation at Northumbria NHS (or any other hospital whose car parks are run by ParkingEye) should contact the trust's chief executive and supply them with a copy of the FoI results from Marlborough Hill Car Park to show them how the system should be run.

The chief executive of Northumbria NHS is Jim Mackey. jim.mackey@nhct.nhs.uk

About Me

The Parking Prankster is dedicated to putting the fun back into parking. Sometimes there is a serious side too, as the prankster highlights scams and ruses used by the darker side of the parking industry to part you from your money.
Please contact me with parking stories you think would make interesting blog posts either via email prankster@parking-prankster.com or my twitter feed, @ParkingPranks